ABG17 v Minister for Home Affairs

WHITE J: 1 The Appellant, a national of Sri Lanka, arrived in Australia by boat on 11 October 2012. As such, the Appellant was an "unauthorised maritime arrival", as defined in s 5AA of the Migration Act 1958 (Cth). 2 On 27 October 2015, the Minister, acting pursuant to s 46A of the Migration Act, lifted the bar, thereby permitting the Appellant to make an application for a visa. The Appellant then lodged an application for a Safe Haven Enterprise Visa (SHEV) on 30 December 2015. That application was determined by a delegate of the Minister who, after interviewing the Appellant and receiving submissions from his migration agent, refused the application. That occurred on 26 August 2016. 3 The delegate's decision was a "fast track reviewable decision" within the meaning of Pt VIIAA of the Migration Act and, on 30 August 2016, his application was referred, pursuant to s 473CA of the Migration Act, to the Immigration Assessment Authority (the IAA). At the same time, the IAA was provided with the material required by s 473CB of the Migration Act. 4 The IAA carried out its review without interviewing the Appellant and without obtaining any further material. On 12 December 2016, the IAA made a decision affirming the delegate's decision. 5 The Appellant then sought judicial review of the IAA decision in the Federal Circuit Court (the FCC). That application was unsuccessful: ABG17 v Minister for Immigration [2018] FCCA 778. 6 This judgment concerns the Appellant's appeal against the decision of the FCC. 7 For reasons which will become apparent, it is sufficient to recount the basis upon which the Appellant made his claim for protection in the manner identified and considered by the IAA: the Appellant is of Tamil ethnicity; he was born and brought up in the Eastern Province of Sri Lanka in an area which, during the Civil War, had been controlled by the Liberation Tigers of Tamil Eelam (the LTTE); during the Civil War, two of his older brothers had been suspected (wrongly) of being members of the LTTE. One was killed by the Sri Lankan Army and two others left Sri Lanka, one of them permanently; between 2003 and 2005, the Appellant had been forced by the LTTE to use the family tractor for its activities. This had drawn him to the attention of the authorities, with the consequence that he had left, and remained away from, Sri Lanka between 2005 and 2009; on his return to Sri Lanka in 2009, the Appellant had been subject to a round-up of Tamil males and required to report to a Special Task Force (STF) camp. For a period of about three months, he had been subjected to investigation by the STF; in June or July 2012, the Appellant had left Sri Lanka by boat but the vessel was intercepted by the Sri Lankan Navy. He was then returned to Sri Lanka and charged with having left the country illegally. That charge had not been resolved when the Appellant left Sri Lanka again in September 2012; in August 2012, the Appellant, as a member of the Youth Awakening Association (YAA) and the Youth Sports Association (YSA), had assisted a Tamil National Alliance (TNA) candidate contesting the Eastern Provincial Council elections. As a consequence, he had come to the notice of members of the Tamil Makkal Viduthalai Pulikal (TMVP), who had telephoned him with threats of death if he continued with his support of the TNA candidate. The Appellant had reported these threats to the police. Despite that, he had continued to receive threatening telephone calls; and because of his fear of suffering harm at the hands of the TMVP, the Appellant had decided again to leave Sri Lanka illegally and did so in September 2012. 8 The reasons of the IAA indicate that the member accepted much of those matters, although not the Appellant's reasons for leaving Sri Lanka in September 2012. 9 The scheme for review of fast track decisions, set out in Pt VIIA of the Migration Act, has now been considered in a number of authorities. Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, (2018) 353 ALR 600; BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169, (2017) 253 FCR 448; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, (2017) 253 FCR 475; and BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49 at [69]-[72]. It is not necessary, for the determination of this appeal, to review the provisions in Pt VIIA in any detail. It is sufficient to note that the task of the IAA is to review the fast track reviewable decision referred to it by considering the review material provided under s 473CB (s 473DB). The IAA may request new information, and may invite a person to give new information orally or in writing. However, the IAA was not bound to interview the Appellant, nor to seek further information from him (s 473DC). Section 473DD limits the new information to which the IAA may have regard. 10 Although the IAA accepted some elements of the Appellant's claim, it considered that his fear of harm if he was to return to Sri Lanka was not well founded. It is apparent that in reaching that conclusion, the IAA relied to a significant extent on country information available to it. 11 The Appellant was unrepresented in the FCC, as he has been on the appeal in this Court. His application to the FCC contained 19 grounds, each of which asserted, in an unparticularised way, legal or jurisdictional errors by the IAA. The FCC Judge characterised these grounds (in my view, fairly) as follows: • denial of natural justice in the sense that he was not able to present his case or provide evidence to the IAA; • the review process was not fair: • the IAA took into account irrelevant considerations or failed to consider relevant ones or give them appropriate weight; • the IAA failed to apply the statutory criteria relevant to its jurisdiction; • the IAA was biased against the applicant; • the IAA's decision was legally unreasonable; and • the IAA's reasons were inadequate. 12 The FCC Judge considered each of those grounds and found that none of them was established. 13 The grounds in the Appellant's Notice of Appeal to this Court are as follows: The Federal Circuit Court failed to find, in respect of the IAA (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application filed in Adelaide. They are: Denial of natural justice in the sense that he was not able to present his case or provide evidence to the IAA; the review process was not fair; the IAA took into account irrelevant considerations or failed to consider relevant ones or give them appropriate weight; the IAA failed to apply the statutory criteria relevant to its jurisdiction; the IAA was biased against the applicant; the IAA's decision was legally unreasonable; and the IAA's reasons were inadequate. 14 As is apparent, that summary of the grounds replicates exactly the seven point summary given by the FCC Judge. 15 As with his grounds in the FCC, the Appellant did not particularise any of the grounds of appeal. Nor did he provide an outline of submissions containing any such particularisation. Further, on the hearing in this Court, the Appellant, while submitting that the decision of the FCC Judge was wrong, did not articulate any basis on which the Court could conclude that any one of those grounds was established in a way giving rise to jurisdictional error. This was despite my attempts to explain to the Appellant the necessity for him to show, by reference to the circumstances of his own case, that one or other of the pleaded grounds existed in fact. 16 As counsel for the Minister noted, the function of this Court, on an appeal of the present kind, is to consider whether there is appealable error in the decision of the primary Judge: Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 at [43]. This requires the Appellant to show that the decision of the IAA was affected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13]. 17 Apart from making the bare assertions in his Notice of Appeal, the Appellant did not attempt to show jurisdictional error of any of the kinds set out in his grounds of appeal. 18 Counsel for the Minister submitted that the failure to provide proper particulars of a ground for review was itself a basis for dismissing the appeal. He referred, in this respect, to SZNXA v Minister for Immigration and Citizenship [2010] FCA 775, at [21] (Reeves J); and WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, at [35] (Gilmour J). 19 Despite that submission, I have reviewed the reasons of the IAA and of the FCC Judge. On that review, I have not been able to identify any basis on which it is even arguable that the FCC Judge made an error of the kind which the Appellant alleges. 20 It is apparent that the IAA discharged its function in the way required by Pt VIIAA of the Migration Act, and that it applied correctly the criteria contained in the Act for the grant of a SHEV under both of the relevant limbs of s 36. Taking into account the elaboration of the expression "a well-founded fear of persecution" contained in s 5J of the Migration Act and the criteria for complementary protection, the IAA considered each basis of the Appellant's claim for protection. The mere fact that the Appellant's claims were not accepted does not mean that there has been jurisdictional error, however unfair the Appellant may consider that to be. There is no indication that the IAA member was biased, actually or apparently, against the Appellant, or that the member approached the task of review with a preconceived view as to the outcome. The IAA's decision had an intelligible and rational basis, as its reasons indicate. On any reasonable view, the reasons given by the IAA were adequate. 21 It is understandable that the Appellant is disappointed with the decision of the IAA and of the FCC Judge but in the absence of jurisdictional or like error, his disappointment is not a matter warranting this Court's interference with the FCC decision. 22 For these reasons, the appeal is dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

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